*1 Dist., Div. One. May 42273. First No. 1979.] [Civ. CORPORATION, INTERNATIONAL
DIAMOND Plaintiff Respondent, Officer, etc., BOAS, Administrative as Chief
ROGER Defendant Appellant.
Counsel O’Connor, Jr., Thomas M. Thomas A. Chief Attorney, City Toomey, Delventhal, Burk E. Deputy City Attorney, Deputy City Attorney, for Defendant and Appellant.
McCutchen, Enersen, Brown & David Balabanian, M. James L. Doyle, Hunt and Donn P. Pickett for Plaintiff and Respondent.
Opinion SIMS, J.* Chief Administrative Officer (hereinafter Appellant, Francisco, from of the and of San a CAO) City appealed County manu- a New York awarding judgment respondent, corporation, facturer of an card approved computerized system1 punch voting “Datavote,” denominated restrain- a and permanent injunction enjoining the CAO from with the of voters’ selection of a ing interfering registrar to be used in and The CAO computer voting system city county.2 contends that the function and of the office personnel voters were administered director of finance and records as by part and which in turn was finance records department expressly under charter,3 the control of the CAO placed and and by county Justice *Retired Associate of the Court of under Appeal sitting assignment by of the Judicial Council. Chairperson Code, 15000-15369, (Stats. 1Division of the Elections sections as revised in 1976 1438, 17) ch. 3 and § ch. with generally systems and voting deals machines, selection, their their and the approval, of elections in which conducting they “Votomatic," are used. Both “Datavote” and its are competitor, approved systems. ordered, full text of the “It and 2The is as follows: decreed that: injunction adjudged issue, Boas, “A and defendant his permanent injunction enjoining restraining hereby servants, them, in concert persons and all and agents, and employees, acting participation done, them, from to or any each or doing causing directly indirectly, acts or following things: with, or “Interfering or or to disturbing overruling seeking interfere with or attempting or to disturb overrule the Voters for and Registrar City County San Francisco conduct, in his and control of all matters management elections in City and and in of Voters’ selection of a County, particularly Registrar computer voting be used in City system County; or or to select order ordering or to or to “Selecting, requisitioning seeking attempting of San Francisco for election requisition on voting system City County of his basis Voters.” authority against Registrar authority 3The,Charter of the Francisco as adopted San November City County (Stats. and filed with the December Res. State ch. approved Secretary that therefore he authorized to countermand the selection of fully Datavote made which had been registrar. claims that the of other sections of the
Respondent plain meaning charter, when viewed in the particularly light judicial interpreta- tion of similar of an earlier demonstrates conclusively court, as found the trial had the exclusive registrar, to select a The resolution these contentions is voting system. conflicting because the of a involves not complicated adoption voting system only the choice of the medium which the voters are through going express i.e., ballot, machine, card, their or other but preference, punch system, also the selection and the requisitioning purchase particular From our examination of the charter and the relevant equipment. Code, sections of the Elections we conclude that the does not have the exclusive to assert a in either The right preference respect. must be reversed. judgment
The matter came before the court on motions for summary judgment each of the at the interposed by parties. parties stipulated hearing below that there are no triable issues of fact. The facts were developed the exhibits to the with accom- through complaint depositions, *5 exhibits, of the CAO and the panying registrar.
In of the incumbent assumed the duties of May Registrar Voters-Recorder for the and of San Francisco. This is a civil City County service that he obtained examination. position by competitive Very early in his tenure he aware of became the need for a new pressing voting He conducted an extensive of the available system. personal investigation 4538 et the codified of the 1932 charter. Section 3.510 seq.) provisions p. functions, that are pertinent part: hereby “The activities and county and the city affairs of under the direction of the chief administrative officer placed this by provisions charter, and the and duties officers and powers charged specific employees thereof, shall, to the of section 11.102 and section 3.501 of jurisdiction subject officer, this be allocated the chief administrative by among following Records, of Finance and departments: Department shall include functions [K] collector, voters, recorder, and of the offices of tax personnel clerk and registrar county administrator, and shall public be administered a director of finance and records who by shall be the chief administrative officer and appointed by hold office at his plea- (Stats. sure. . . amended, On November section 3.510 was second was paragraph Services, revised to read as follows: which shall include “Department Governmental voters, recorder, the functions offices of personnel registrar public administrator and such other functions as the chief administrative may assigned by officer, and shall be administered the chief administrative officer.” Since the CAO by was the officer for the order of the director of finance and responsible acknowledgedly Datavote, records which caused the withdrawal of the there selection is no registrar’s case the amendment. change posture over a of some six months. His conclusions were
systems period submitted in a to the CAO dated March 1977. report The was for the Datavote strong preference registrar system manufactured The relative merits of the Datavote by respondent. system Votomatic, its not issue; are at but the competitor, calculated their total and lease at costs respective capital purchase $1,047,623 Datavote, $1,572,406 for Votomatic. He was took as the on 1977.
The office CAO appellant January and confirmed the board of On appointed by mayor supervisors. office, soon he became aware of the taking registrar’s study not He did much attention to the systems. very pay registrar’s report it when came to him. His concern about the his registrar’s competence, belief selection was his hall system responsibility, connected with inaccuracies in the count at a recent election “paranoia” led him to committee consider the alterna- appoint independently tives. committee, which
The contained from the representatives mayor’s office, the board of of Women supervisors, city attorney, League Voters, the and an data electronic met city purchaser, processing expert, four times and recommended the Votomatic The unanimously system. CAO, made no decided having personal comparison, accept recommendation, and it to committee’s reported mayor on 1977. April supervisors to the committee’s considerations responded
reaffirmed his belief that Datavote the better in a memoran- system *6 19, to dum the CAO dated 1977. The committee met with the April 29, to discuss his on did its but not response April change recommendation. 2, 1977,
A election was for and the special August planned submitted for the Datavote On he requisitions equipment. May received a memorandum the CAO from the director instigated by and records him to finance Votomatic instead. He ordering requisition complied. filed its for and
On May respondent complaint declaratory for the relief which relief the CAO was against injunctive praying granted the trial court. fn. 2 (See above.) injunction predicated upon and Defendant follows: “Plaintiff minute order the court’s reading no triable issues that there are in this court on July stipulated method of is and that proper fact appropriate summary judgment motion for action. Plaintiff’s of this summary judgment disposing [If] the extent that this of action to and second causes as to the first granted of San of Voters for the declares that the County court City Registrar 9.102 and 3.201 exclusive under Secs. Francisco has the authority Charter to select a machine system City County City voting to the machine is a matter that the choice of a voting system elections, a matter under the exclusive conduct subject authority Voters. A will issue as for permanent injunction prayed Registrar [If] Defendant’s motion for summary judgment plaintiff’s complaint. [If] to is denied. Costs [f| plaintiff.” followed the
This permanent injunction. entiy appeal charter Before precedents examining applicable provisions facts, we to comment on the their to the foregoing pause application sue, nature of to and the lack of parties plaintiff’s standing questionable now seek to to resolve all of the issues which the CAO and the respondent have adjudicated.
I clear below “As will become at one in its brief states: Appellant point of who has make case involves this authority only question Francisco.” He later of a San selection distinguishes voting system between money process appropriation requisitioning He “The instant case make the states: only purchase equipment. He that the final decision deals with the process.” suggests requisitioning is in the board of its control through appropriations supervisors in the Elections because of found Code appear give the board of supervisors adopt voting system.4 Code, (Stats. 2), 3 and ch. § 4The Elections since ch. January for use at elections as follows: 15023. The governing may adopt “§ provided combination of a kind of or combination of or voting any voting system any systems that the use of the voting system systems ballots paper system law. . .” the commission or authorized . has been approved by specifically involved *7 (Since Stats. ch. § amended by for for in this division any a adopt 15201. A board may system governing “§ election. The and for or all any within its any portion all jurisdiction, or precincts time, combine, the or enlarge precincts to rearrange, from time election official may, election precinct or general no direct primary is adopted, provided which such system 1,000 3], ch. § deleted Stats. voters limitations more than include [other shall the also “This case concerns selection has acknowledged:
Respondent “Thus, both of a not the of a sides system, purchase voting system”; start, have that the controls the from the Board Supervisors agree, a In brief it with purchase voting system.” respondent’s original agreed Code, the CAO that the state see (Elec. above) law fn. gives board,” the and neither the CAO nor the the “governing registrar, a Nevertheless it to claim that adopt system. authority appears the can or a selected board supervisors only “adopt” reject system the registrar.
In of that view case each side was to comment posture requested on whether ultimate the final rests with analysis exclusively The board CAO in his supervisors. persisted original analysis however, an affirmative answer. furnished suggested Respondent, an noted above fn. (see analysis history statutory provisions 4), and construction which tend to the view statutory principles support that the successor the former board of election commis- registrar, sioners, exclusive or not a right adopt adopt voting system It under the of the Elections Code. from the record appears 2, 1977, brief that August special respondent’s supplemental was held Votomatic election with secured through equipment execute. was ordered to the trial requisition registrar Following elections in court’s November and June were judgment, conducted Datavote asks tous respondent’s system. Respondent 24, 1978, take notice that on the board of judicial July supervisors resolution Datavote unanimously adopted selecting system; 4, 1978; on vetoed resolution that on mayor August September board a vote six to five reversed itself and adopted resolution, the next the Votomatic approved day by mayor, adopting that on matter, on reconsideration of system; January the full board defeated a new resolution for the use of Datavote. calling we from released box the Pandora’s
Although thorny problems inherent in a review of the acts board propriety subsequent we decline the on invitation to their Neither supervisors, legality. pass nor is a the board Votomatic supervisors, mayor, party We have the and its chief administrative this action. city attorney board to use cease such or all or elections governing may system any precincts under its jurisdiction.” “ code, board” is not in the section ‘Elections defined but 15004 reads: “Governing clerk, clerk, voters, elections or supervisor, official’ means any county over within elections district having city, governing jurisdiction county, within the state."
1023 court, before the but we hesitate to consider officer rights board, of the and the mayor respondent’s obligations competitor vis-á-vis the be involved in the registrar, except they may peripherally between the CAO and the dispute respondent. original This us to the brings question standing respondent suit, this of whether the whose bring problem registrar, rights stake, are at should have been made a An examination obligations party. reflects that this is not a allegations respondent’s complaint suit under the of section 526a of the Code of Civil taxpayer’s It not Procedure.5 is ais alleged respondent corporation taxpayer. of the action not to is It anis gist prevent expenditure money. to insure that if it will flow into the coffers of attempt any money spent Harman v. (Cf. San Francisco 7 respondent. (1972) City County of Cal.3d 159-160 496 P.2d v. Blair Pitchess 1248]; Cal.Rptr. [101 5 Cal.3d 267-270 (1971) 486 P.2d 45 A.L.R.3d Cal.Rptr. [96 Witkin, and 3 Cal. Procedure 1206]; ed. (2d 1971) Pleading, 1792-1793.) Section 367 of the Code of Civil Procedure with an requires, exception here, not action must be in the name of the applicable “Eveiy prosecuted real in interest . . . .” It who is not a party appears registrar, action, to this is the real in interest in his freedom party party establishing records, from control the director of the of finance and department CAO the board of If the and the CAO supervisors. should resolve their differences would the have a respondent right action? If is unsuccessful on this will the respondent appeal from the same It us estopped relitigating question? appears of the matter before trial court in the posture placed respondent of an unsuccessful bidder on a contract where the position public bids, reserves the to and does all or awarding authority right reject otherwise exercises reserved discretion. v.Co. (See Stanley-Taylor Super- visors 135 Cal. v. (1902) P. Rubino Lolli 783]; (1970) [67 1059, 1062 Baldwin-Lima-Hamilton 320]; Cal.App.3d Cal.Rptr. Corp. [89 Court 816-817 (1962) 798]; Superior Cal.App.2d Cal.Rptr. 377, 382 Judson v. Durkee Pacific-Murphy Corp. Cal.App.2d Procedure section 526a “An 5Code Civil action to obtain provides pertinent part: of, of, to, waste or restraining judgment, preventing any illegal expenditure injury estate, funds, town, state, of a or other or property county, county city thereof, or be maintained officer or other its may against any agent, person, acting behalf, therein, either a citizen resident who is assessed for and is by corporation, or, action, liable to within one before the commencement of the a tax paid, pay, year therein. . . .” *9 1024 P.2d Charles L. Inc. v. Durkee 107 97]; (1951) Harney,
[301 Cal.App.2d 561, 580 P.2d 31 A.L.R.2d and Laurent v. 457]; & [237 City County of 99 710-711 (1950) S.F. P.2d Note also Old Cal.App.2d [222 274]. Town Dev. v. 249 Urban Renewal (1967) Corp. Agency Cal.App.2d where, here, 331-332 a selection 426], Cal.Rptr. process [57 involved.) at, it has been established that an unsuccessful bidder or a
Similarly
to, a sale under a deed of trust cannot assert the trustor’s
stranger
possible
manner in which the sale was conducted.
Block v.
(See
objections
Tobin
45
221
(1975)
and Monolith
288];
Cal.App.3d
Cal.Rptr.
[119
Portland
v.
206
Cement Co.
Tendler
806
(1962)
Cal.App.2d
[24
we note that the
38].)
Cal.Rptr.
Finally
rendering
opinions
advisory
falls within neither the functions nor the
of an
jurisdiction
appellate
court.
ex
rel.
v.
1
(See
Court
Cal.3d
(1970)
People
Lynch
Superior
670,
Under concession was certain until the parties’ original nothing board of for the use of the supervisors actually appropriated money but, made, seen, Such a decision was as we have this action is equipment. not based on the that funds were theory allegedly paid illegally Votomatic for furnished at the 1977 election. equipment August
We out our reservations point concerning right respondent action to this obviate that in the merits bring any assumption considering before the trial court we controversy approve right or services to sue a in the absence of a purveyor goods public body, aof contractual where if its showing relationship, particularly rights, any, must on the exercise of discretion officer or depend public employee, who is not even made a to the action. party we are to consider the merits to the extent
Nevertheless
impelled
The CAO
not
not
indicated above.
objected
respondent
real
in interest and otherwise lacks
to sue. The trial court
party
standing
it,
were
before
assumed
parties
properly
parties
the matter on that basis. The CAO would be
submitted
estopped
at this late date.
International Assn.
(See
challenge
assumption
Palo Alto
Fire
Cal.2d
Cal.Rptr.
Fighters City
We therefore consider the merits.
II *10 26, 1898, The 1900 charter election (ratified May approved by 26, 1899, 1899, 8, 1900; Jan. and effective Jan. Res. ch. Stats. Legislature 2, XI; 241 et created a of elections (art. p. seq.) department XI, 1899, of election commissoners (art. Stats. a board 344) p. governed by I; in “The article XI ch. Section 1 of I of id.). part: provided chapter voters, and conduct, of the and control management, registration elections, and of all matters in elections holding and shall be vested in and exercised a county, exclusively commissioners, members, board election of five who shall be consisting and shall hold office for four (Id.) appointed by mayor, years.” of the section fixed the for each remaining provisions compensation commissioner, terms, and and established limita- staggered qualifications, on the at tions all aimed domination appointing power, preventing by any one Section 2 restricted commissioners’ political party. participation activities. Section for the (Id.) political organization provided board, and included “The board shall a following: appoint registrar voters, who shall receive an annual hundred salary twenty-four board, dollars. The shall and shall secretary keep of its record and shall execute all orders enforce all proceedings, rules and the board. The term of office of regulations adopted by shall be four at Section 4 (Id., 345.) for clerical years.” p. provided assistants, Service, to the article on Civil section subject provided election laws of the state to elections and application of voters. II dealt with Elections.” registration Chapter “Municipal In 1903 the established a state on commission or Legislature voting machines, ballot “The or other board provided: supervisors, counties, and control of in each elections and cities having charge counties, state, for cities or towns of the . . . may provide require machine, 1903, use of or ballot or machines . . . .” ch. (Stats. voting 226, 2, 262-263, 1 & A italics similar found in added.) §§ pp. provision 1911, 1911 amendments. ch. In latter (Stats. 980.) p. year, III, XI of article IV and V chapters respectively dealing Initiative,” Referendum,” “The “The and “The Recall” were added Res. ch. (Stats. 1670-1679), pp. provisions concerning had those been I added were subjects chapter repealed. Chapter II was amended to details elections. (Id., provide concerning municipal Subdivision of section 6 1679-1686.) (h) pp. recognized “Voting machines” and “In the event the use of machines, the provided: voting ballot shall be on the machines in the same form in arranged each district ballot.” In (Id, 1684.)
assembly provided printed p. 1917 the same in section 14 of II when that placed language chapter was revised. Res. (Stats. ch. 1719.) chapter In 1923 the recast the law machines. Legislature concerning voting ch. Section 5 “The board (Stats. part; or other board and control of elections in each supervisors having charge counties, counties, towns, and cities cities state may for use at elections kind of machine adopt approved by *11 machines, state commission on use or the of which has been voting law; authorized such machine specifically by voting thereupon may used at be or all elections held in any any county, city city, county, town or subdivision thereof for any political voting, registering votes cast at such elections. . . .” In 185.) the same (Id., counting year amendments, the charter had ratified the voters Legislature approved by on November an amendment to make section 14 of including chapter II read as “In the event of follows: of the use the machines voting ballot, vote, of the the the the canvass of returns arrangement counting the result determination of shall be the laws governed by the State.” Res. ch. (Stats. In that of election board commissioners resolution year adopted for and use of 52 machines. A voting providing purchase taxpayer a writ to voters ballots which sought compel print would with the II of XI section 19 article comply provisions chapter (Ashe Cal. prescribing preferential voting. Zemansky 84-85 P. It was that under the terms of the charter the 591].) apparent use would eliminate machines voting preferential voting system. court and met to the as follows: phrased major charge challenge “The however, most serious is as to the presented, question power board of election commissioners. It is that machines for use urged voting in elections could be charter municipal only adopted by people by amendment. The most obvious this contention it is that difficulty section 14 of article XI the charter of all force deprives chapter [of II] If there no in the use whatever. was or its officials to there was no occasion for machines whatever for voting providing machines, of the use such for if the machines could only consequences charter, at authorized the amendment to the the time the charter be by amended, well what the effect of their it could equally provided seem clear in use should be. It would the people, adopting XI, amendment in article section charter contemplated of the constitute the board of who body either the legislative supervisors, commissioners, the charter either under board of election or the city, state adopt voting when thereto authorized might legislature, by some elections, our and it is machines for use' at duty give municipal At first so to do. if it is amendment to the charter effect this possible [f] from the it seem that the blush would resulting consequences far-reaching XI, should not article section use of machines as voting provided an administrative come within the body merely jurisdiction of election But controls the conduct of elections. calling does not solve commissioners an administrative problem, body under the if have because powers express they legislative charter, duties are those of an administrative the fact that their ordinary not detract from the mandate character would plain not a charter are judicial, required separate people adopting but and executive government, may adjust legislative departments that is the charter affairs any way municipal machines It is clear that the to themselves. adoption satisfactory contained in section 1 of authorization *12 comes under the chapter general charter, of election commissioners XI, of the the board article giving to in the of control ‘of all matters elections City County pertaining is a ‘matter The of machines San Francisco.’ clearly adoption voting Francisco, of San and for to elections’ in the and county city in the to clear that if there is that reason it would seem be anywhere to charter for a officer municipal body adopt the board of election machines, would be vested in such power commissioners, the fact that the and this notwithstanding general (Id., the of is board supervisors legislative body city [citations].” 86-87.) pp. law, for a not that the state court also noted binding
The although the board the election controlled municipal for use at a machines could election commissioners adopt voting conclusion that it would be out in of its It election. pointed support not use them at a the machines and then to so unreasonable acquire 87-88.) Cal. at election. (192 pp. municipal in which the was not the
Ashe v.
powers
only litigation
Zemansky
In 1927 the
were considered.
of election commissioners
board
power
was
to fix the
city employees
compensation
supervisors
charter
to the
of the charter amendments of 1924.
prior
adoption
(202
at
Cf.
Cal.
21-22.
v.
Madera
111
(1931)
pp.
Niceley County
Cal.App.
731, 737
P.
In
306].)
v.
(1927)
Cal.
P.
it
729],
Boyle
[296
[259
Griffin
was claimed that the
did not
to
principle
foregoing
apply
budget
because
I
elections
section of
of article
ofXI
department
chapter
the 1900 charter
to
the board
in
purported
give
autonomy
fixing
salaries of its
held that
court
in
employees.
budgeting provisions
section
I of article III of the charter as amended November
chapter
1924, controlled.
at
Cal.
As a
in
(202
97-98.)
corollary,
subsequent
case, Division Two of this court denied a claim for
fees
attorneys’
the board
v.
case. The
presented by
attorneys
Boyle
Griffin
court
“The
stated:
authorities cited
we deem not to
inbe
by appellants
not
because
between
controversies
two
point
dealing
departments
the same
is not a
This
case where counsel were
municipality.
employed
an action with another
but
an
represent
municipality
party,
The board of election
is a
commissioners
inter-departmental controversy.
and its
are not
such as make
department
city government
powers
it function
from the other
independently
departments
v.
v. Badaracco),
government.
Boyle
supra,
Fitzgerald
{Jackson
Griffin
Badaracco,
.,
On a new ratified electorate January 26, 1931, and filed with and approved by Legislature Secretary 1931, 56, on into ch. 2973.) State went effect. Res. (Stats. p. May In lieu of the former The board of election commissioners was abolished. and section 173 under the title “Elections” subtitle provisions “Registrar Voters,” in to in the words identical those provided, lodging powers conduct, in and board 1900: “The control management registration voters, to elections, and of and of all matters the holding elections in the and shall be vested in the county, exclusively registrar city The in this of voters.” section continued: charter otherwise “Except to the and duties the board of he shall succeed powers provided, 8th twelve noon on the election commissioners at o’clock day January, 1932, of said shall at which the terms the members time terminate, shall be as theretofore abolished.” such board existing 173, 1931, 56, The of the first ch. 3082.) Res. § (Stats. p. language IX, “Elections,” as the 9.102 of article was embodied in section sentence 273, 1971, ch. was 1971. Res. 4852.) charter codified in (Stats. p.
At the same administrative time the charter divided responsibility 35-52; 1931, 56, Stats. Res. ch. 2997-3009) between (§§ pp. mayor id, created office chief 59-61; administrative officer (§§ newly Section 61 3013-3016). of voters in the placed registrar depart- finance ment of and records in the same as that language substantially in found in section of the codified as noted 3.510 charter adopted fn. 3. above. Cf. Stats. Res. ch. 56 (See 3014.) p. powers of the CAO were defined as follows section 60: “The chief administra- shall tive officer and to be the board of responsible mayor for the administration of all affairs of the supervisors county are his of this charter and placed provisions charge by ordinance, and to end he shall it shall have be his power duty exercise and control over all administrative supervision departments which are under . . .” Res. ch. 56 his (Stats. p. jurisdiction; 1971, 3.201, Codified Stats. In 1948 the 4602.) § p. provision following added to section 60 of the “The chief administrative officer charter: exercise the recorder to the duties may designate perform powers and to of voters voters offices occupy recorder, fixed therefor to be in accordance single salary receiving with the charter.” standardization of this (Stats. salary 3.201, 207. Res. ch. Codified Stats. ch. § p. an to section 3.201 ratified amendment (former
In 1976 electorate “The administrative officer shall that it now reads: chief so 60) the Board Supervisors mayor responsible *14 that are in his and administration all affairs city county placed ordinance, end, that the of this charter and and to charge by provisions as otherwise in section 9.102 this and except voters, this state laws registration holding respecting in a he and all matters elections elections city county, pertaining be his to exercise have and it shall shall supervision power duty are all under his control over administrative which departments jurisdic- 33, Charters, 14, italics tion; 1976, ch. added.) . . .” (Stats. p. Appen. 1030
The asserts that the of the charter respondent as plain meaning in 9.102 amended, found section and section 3.201 as and as recently Ashe v. in the conclusion that interpreted compels Zemansky, matters, has the exclusive over election authority including of a Its is selection voting system.6 position respectable supported by “It is axiomatic that in the aof statute precedent. interpretation clear, where the its should be followed. (45 language plain meaning Cal.Jur.2d, Statutes, 108, 621.)” Lakes Inc. v. (Great p. Properties, City 152, El 19 154, Cal.3d 155 (1977) 561 P.2d Segundo Cal.Rptr. [137 of 244].) The courts are bound to a clear statute interpret language usual its v. Court (Rockwell according ordinary import. Superior 420, 650, 18 442 Cal.3d 556 P.2d (1976) T. v. 1101]; Cal.Rptr. Leroy [134 434, Bd. Workmen’s 12 Cal.3d 438 (1974) Comp. Appeals Cal.Rptr. [115 761, 525 P.2d v. 665]; Knowles 35 Cal.2d 182-183 (1950) People [217 den., P.2d [cert, 340 879 U.S. L.Ed. 71 (95 S.Ct. 117)]; 1] Hazelwood v. Hazelwood 57 698 (1976) Cal.App.3d Cal.Rptr. [120 384].)
If we confine our examination of the charter provisions upon relies, it that respondent appears adoption “[t]he machines is a ‘matter to elections’ in the clearly pertaining (Ashe of San Francisco . . .” v. . Cal. at 192 county supra, Zemansky, machines was vested in the board of authority adopt voting commissioners (id; election and see v. 403 (1949) People City Chicago 134 111. N.E.2d It is therefore that the 672-673]). fairly [85 arguable same vested in the under the charter which became effective in and under its codification 1971 amendment of 1976. statutes which with are amended similar Generally wording to that in statutes are construed preexisting enacting though body had decisions which construed the law. knowledge judicial prior v. Board (See 66 Cal.2d 735 (1967) Enyeart Supervisors [58 of 509]; 733, 427 P.2d Research v. Financial Cal.Rptr. Property Corp. 23 (1972) Court 421 Superior Cal.App.3d 233].) Cal.Rptr. [100 Bd., In T. v. court Workmen’s Appeals supra, Leroy Comp. “ who ‘One contends following approval: provision quoted however, Cal.2d 6Compare, P.2d Farley Healey Cal.Rptr. contention, 650], where the of the court advanced two majority rejected of section 1932 charter which dissenting justices provide “ ” ‘control . all matters to elections . . . shall vested exclusively’ of. . he him the to refuse to an initiative measure because certify registrar, gave power omitted.) (Italics (67 of the electorate to adopt. considered it was not within the power 336-337.) at Cal.2d
1031 of an act must not be the natural or applied according customary of its must show either that some other section of the language purport act or restricts its itself is expands meaning, provision repugnant act, to the of the or that the act considered in purview general pari acts, or with the materia with other of the legislative history subject Sands, matter, Statutes and a different (2A meaning.’ Statutory imports Sutherland, Construction, ed. of 1973) Construction (4th Statutory 46.01, Cal.3d at 438. See also Great Lakes 49.)” (12 p. Properties, p. 19 Inc. v. El Cal.3d at 155-166.) City Segundo, supra, and contends that other CAO accepted challenge provisions the charter restrict the found in the section which plain meaning upon relies; that to so construe the respondent charter; to the and that when the general
repugnant purpose of section 9.102 are considered in materia with the other pari provisions Code, charter sections and the of the Elections should provisions they have a more limited meaning.
The charter is like a constitution and the following principles
construction,
must be
“Under familiar rules of
if it is
applied:
impossible
constitution,
harmonize
reconcile
of a
portions
special provisions
control more
general provisions,
special provisions
neither
of the other.
operate together,
working
repeal
[Citations.]
Recourse
be had to the whole instrument to ascertain the intent and
may
should,
of its
and it
if
be construed so
toas
purpose
provisions
possible,
Lines,
avoid a
v. Western Air
Inc.
42 Cal.2d
(1954)
repugnancy.” (People
621,
dism.,
Lines,
637
P.2d
sub nom. Western Air
Inc. v.
[app.
[268
723]
611,
Respondent
squarely
provisions
173 of the 1932 charter which read:
as in this charter otherwise
“Except
he
shall succeed
and duties of the
registrar]
provided,
powers
[the
.
. .”
of election commissioners
.
Res. ch.
(Stats.
the other
italics
Reference to
charter reflects the
added.)
control over the
that was conferred on the CAO
administrative
*16
directors,
of finance and records and its
(1932
through
department
61;
1972, 3.510;
Charter,
see fn. 3
codified
above.)
§
Furthermore the
§
1932 charter set
detailed
for
and Fiscal Procedure”
up
provisions
“Budget
69-87,
1931,
56,
3019-3031; codified, modified,
Stats.
Res. ch.
as
(§§
pp.
6.100-6.313,
1971,
273,
1972 in
Stats.
Res. ch.
and for
4667-4683),
§§
pp.
Charter,
88-90,
1931,
(1932
Stats.
§§
Res. ch.
“Purchasing”
3031-
pp.
3033; codified,
modified,
7.100-7.104,
as
Res.
1972 in
Stats.
§§
here,
ch.
So far as is
in 1932 section 88
4690-4693).
pp.
pertinent
materials,
“The
shall
all
supplies
provided:
purchaser
purchase
nature,
kind and
and enter into
supplies
equipment
every
for all contractual services
the several
agreements
required by
depart-
ments and offices of the
in
this section
county, except
otherwise
. . .”
Res. ch.
We find
(Stats.
§
provided.
p.
no
of finance
office or the
exception
registrar’s
department
and records of which it was a
continues: “All
The section
part.
purchases
contract____All
shall be written
order written
or
contracts and
by
purchase
material,
orders in excess of two thousand dollars
($2,000)
purchase
or
shall
chief administra-
require
signature
supplies
equipment
tive
officer in addition to the
signature
purchaser
supplies.
...
[11]
made in accordance with
Purchases
shall be
equipment
specifications
furnished
such
in case the use of
by
department requiring
equipment
For
such
such
equipment
peculiar
department.
patented
name,
articles sold
brand
each
proprietary
by
purchaser may require
name,
same
such brand
to furnish
department requisitioning
specifica-
tions
the article
advertise for bids on the basis
requisitioned
may
of such
under conditions
manufacturers of or
specifications,
permitting
dealers in other articles made and sold for the same
on
to bid
purpose
or on
such
their own
If the
specifications
specifications
product.
recommends
of the lowest or best
purchaser
supplies
acceptance
bid,
therefor,
his reasons
and if the
head
writing
stating
department
bid,
concerned recommends
other
on such
acceptance
articles,
therefor,
award
his reasons
shall
proprietary
stating
writing
Stats.
Res. ch.
(Codified,
be determined
the controller.”
4690-4691, 7.100.)
§
orders and
“All
contracts shall be based
Section 89
purchase
provided:
ch.
7.103.)
on written
.. ..”
Res.
(Id.,
requisitions
similar
These
reflect fiscal controls over
office
registrar’s
to restraints on the board of election commissioners.
to those
rise
giving
Glensor,
95;
202 Cal.
Clewe & Van Dine v.
(See
Boyle, supra,
Griffin
*17
Andriano,
99
607.) This
is not unusual and is
supra,
Cal.App.
relationship
of
financial controls
Finance. (See
found in state
through
Department
602,
42
609
Treu v. Kirkwood
Cal.2d
P.2d
v.
State
(1954)
482];
[268
R.
422
Brotherhood
R Trainmen
37
P.2d
(1951)
Cal.2d
[232
857]
den.,
[cert,
Under
1932
charter the electorate
for a
decentralization
provided
is
but it
clear
that
board of
retained
powers,
supervisors
budgetary
control,
CAO,
and that
those
under
even where
departments
contract,
authorized to
exercised such
his
(See
power subject
approval.
v. Ross
Cal.2d
28
577-578
576-577
(1946)
P.2d
Kennedy
[170
Cf.
v.
Madison
&
S.F.
106
(1951)
City County
904].
Cal.App.2d
239-240
P.2d
people voters give it. v. (Kaiser Cal.2d (1936) P.2d adopting 1278]; Hopkins [58 Retirement (1951) Burger Employees’ System Cal.App.2d 702-703 P.2d In the case last cited the court 38].) [226 quoted from State v. Listman Wash. 229 P. approval 915]: “ ‘The words must be read in a sense which harmonizes with the *18 amendment, of the subject-matter general purpose object consistent of course with the itself. The words must be language understood, not as the commission, words of the civil service or the city council, or the or the but as the words of the voters mayor, city attorney, who the amendment. are to be understood in the common adopted They and, in the absence of some popular way, reason to strong convincing here, not found are not entitled to be contrary, considered in a they ” technical sense inconsistent with their popular (101 meaning.’ at To ascertain 702-703.) the intent of the Cal.App.2d electorate it is to consider the official statements made to the voters in proper connection of law are propositions they (See requested approve reject. v. Alameda 46 (1956) Cal.2d 653 P.2d Lundberg County [298 1] of dism., sub nom. v. Alameda 352 [app. U.S. 921 (1956) Heisey County (1 of L.Ed.2d 77 Knowles, S.Ct. v. 175, 182; 224)]; Cal.2d People supra, and State Superior Cal.App.2d 659, Court of California 363].) Cal.Rptr.
The material submitted to the voters here.8 highlights dispute It does assist in what are “election matters.” It is clear that determining June registration Ballot Registrar is Registrar election matters. One all election matters. But another person'in charge responsible though John L. AND CONDUCT OF [11] independence holding 8The Voters’ Information Handbook submitted to the responsible “A YES VOTE “THE WAY IT IS “A “THE PROPOSAL: The handbook also sets forth in Authority Simplification NO VOTE MEANS: it does not state Molinari, of Voters shall be the of Voters. elections, and elections for for all activities of the stated in any Registrar of election matters. The states: “Vote Yes on MEANS: other activities and all matters part ELECTIONS,” Committee NOW: Proposition clearly be vested part: of the Charter If Voters, If The who is in only person you “Ballot you part [H] A states that the Registrar exclusively Charter does not state vote Registrar large capital letters: vote followed of the Charter Elections.” The Proposition Proposition Title charge yes, you Registrar Chief Administrative Officerwill continue to be no, says of Voters you of Voters. charge [11] that in the of election to elections in San “ARGUMENT want the Charter to want the Charter left the Shall all matters A—Election ‘A’—ameasure to says Registrar of election matters. Voters. Voters? Analysis By Registrar argument regarding Registrar voters the Chief Administrative “(A) matters.” clearly of Voters shall at of VOTER REGISTRATION submitted FOR Responsibilities Francisco. Over the Voters is in who is in registration pertaining primary say clearly provide PROPOSITION [H] way [H] be election of Supervisor charge charge it is even to voter Officer of voters, only full ‘A’ of “voter and the “conduct of elections” are such. Neverthe- registration” less, both the ballot committee and analysis by simplification for charter amendment there are other recognize argument activities of the former states: “The Chief Administrative registrar. will continue to Officer other activities responsible of Voters.” The latter provides, Registrar euphemistically hopefully, ‘A’ clarifies and delineates “Proposition carefully relationship Officer, between the of Voters and the Chief Administrative so Registrar and administrative direction appropriate management the Chief Administrative Officer over the office as a Voters Registrar it while clear that the functions government preserved, activity making of Voters voter and the conduct- Registrar concerning registration of elections are the sole of Voters.” (See ing responsibility Registrar *19 8fn. above.)
From the it does not that the voters intended to foregoing appear relieve the from fiscal other administrative controls found in registrar the which do not on his activities while voters impinge registering and while elections. In 1976 there was no conducting attempt change the chain of administrative command found in section 3.510. We also note that when that section was amended to delete the intermediate of the and director of finance and authority department records, the of voters was retained as of one the subordinate offices. fn. 3 (See above.)
It is true as contended that the nature of the by respondent equipment is a used matter to an election in that it affects the manner in which the election will be conducted. Ashe v. so held. Zemansky, supra, There, case, as in this there was no or inter-office interdepartmental to the as for a the method of dispute necessity change voting. resistance to came from outside the That change governmental family. months past considerable attention has been focused the on conduct of voter registration of election It procedures has become clear generally. of very Voters Registrar be must able to the perform duties office free of even the slightest possibility interference, or undue pressure influence from source as except specifically for laws those by functions governing duties. ‘A’ Proposition clarifies [H] delineates between the carefully relationship of Voters and the Registrar Chief Officer, Administrative that so the appropriate administrative management direction of the Chief Administrative Officer over the office Voters as a Registrar is while it government activity preserved, making clear the functions of the Registrar of Voters voter and the are concerning of elections the sole registration conducting of Voters. Vote Yes on it responsibility Registrar ‘A’—make Proposition [H] clear that functions absolutely responsibility vitally important Registrar Voters is entrusted to the person to that and that the duly appointed position, is Registrar assured of independence proper duties.” performance
case, case, unlike this did not involve a as to the dispute specific type to be all equipment purchased implement change. Apparently concerned were satisfied selected equipment commissioners, In that election commissioners. case the board election unlike the awas autonomous registrar, department completely with a been created government history having independently by 299; Stats. ch. v. San Francisco Broderick (See Legislature. 111 Cal. P. 55 Cal. (1896) 960]; People Hoge We find Ashe v. not is on controlling question Zemansky raised of the trial court. judgment the exclusive insists unless
Respondent given right to select the to be used to conduct voting system equipment whole elections for which he is election will be responsible, process influences. That does not survive subjected political argument scrutiny. The fact that the CAO selected representatives supervisors, not, on committee did his mayor city attorney advisory admits, officials, the election It whose respondent corrupt process. gave to the rendered them to criticism when the visibility public subject down, election broke an to assist in machinery opportunity selecting It would that the more were involved in the equipment. appear people debated, the selection and the more it was less process openly opportunity *20 there would be for in that selection. It is nowhere corruption suggested that either machine would lend itself to election corruption process itself.
Here, it is to determine whether has the unnecessary registrar selection of the manner of exclusive to make power original Charter, used in the and 9.102 with (Cf. shall be city county. Code, 15023 and All Elec. fn. concerned are above.) §§ parties card should that a be punch computerized voting system agreed substituted for the existing system.
We do rule that in the to that purchase equipment implement charter; in the is the fiscal controls found change registrar subject over the director of the the CAO virtue of his authority records, which embraced the office of the finance and department to advise the board of virtue of his supervisors obligation registrar, affairs, on fiscal had the power investigate which would best serve recommend equipment city type consideration. The is too over the under injunction county long period broad, of the CAO. The curbs the powers unwarrantedly legitimate is that the CAO should not have we can most say respondent his to recommend forced the requisition, give up right most fitted to he considered to disapproval, equipment subject the future. conduct elections in is reversed.
The judgment J.,
Racanelli, P. concurred.
NEWSOM, J.—I dissent. respectfully intention of while holding opinion, disclaiming any majority select a exclusive or has not the voting system* power Francisco, holds, and in
for San view erroneously contrary necessarily my as to Ashe v. Cal. 83 P. 591], registrar, Zemansky board, successor to the elections lacks such power. that, wrote, no
I realize as Charles Lamb “all words are more to be tailor,” taken in a literal sense at all times than a to a but in promise given view, could clearer from a of the relevant statutes my nothing perusal that, and their than since the matter is one to the history “pertaining conduct of elections” 3.201 of the the selection of a charter), (cf. § system is a matter within authority. solely registrar’s
Whether fiscal other officials prevent powers possessed by might us, choice an issue not before implementation respondent’s concedes, “The themselves have As parties agreed. appellant candidly instant case deals with the process,” again, only requisitioning “[the to make a selection involves of who has authority only question case] *21 of a voting system.” but to decide deems it question, unnecessary majority opinion read as it can be view, its however convoluted exegesis, only my officer in chief administrative actions of the flouting the illegal
approving 3.201 of the charter. of section purpose expressed legislative plainly J., Newsom, was was denied June 1979. for a A rehearing petition that the should granted. Respondent’s petition opinion petition Clark, J., was 1979. Court denied for a July hearing Supreme should be granted. petition opinion are which the parties agree *The seems to me opinion pass upon questions ostensibly not before us.